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2025 MarsdenLR 6135
HIGH COURT SABAH & SARAWAK KUCHING
ALEXANDER ANAK KIMPIN & ORS – Appellant
Versus
PP – Respondent
[Criminal Appeal No: KCH-42H-15-8/2023]
The sentence for mischief by fire must reflect public interest and deterrence, particularly in cases causing significant property damage, with the court's discretion upheld unless principles of sentencing are misapplied.
Headnote:(A) Penal Code - Section 436 - Mischief by fire - The appellants pleaded guilty to committing mischief by fire intending to destroy a dwelling, resulting in significant property damage. The learned Sessions Court Judge sentenced each appellant to twelve years' imprisonment after considering mitigating and aggravating factors. (Paras 1, 12, 30, 51)
(B) Sentencing Principles - The court emphasized that public interest must be prioritized in sentencing, with the aim of deterring future offenses and reflecting society's disapproval. The sentence imposed was deemed appropriate given the seriousness of the crime and the substantial loss incurred by the complainant. (Paras 33, 50)
Facts of the case:
The appellants were charged with setting fire to a house, resulting in damages exceeding RM1,260,000. They were arrested following the incident and pleaded guilty without legal representation. (Paras 7, 8)
Findings of Court:
The court upheld the sentence of twelve years' imprisonment, affirming the learned Sessions Court Judge's consideration of various factors in sentencing. (Paras 30, 51)
Issues: The main issues included the appropriateness of the sentence given the guilty pleas and the public interest in the context of the crime's severity. (Paras 14, 24)
Ratio Decidendi: The court ruled that the sentence must reflect public interest, with a focus on deterrence and the seriousness of the crime. The learned Sessions Court Judge applied the correct principles of sentencing, justifying the twelve-year term. (Paras 33, 51)
Result: Appeal dismissed; sentence affirmed.
Introduction
[1] On the 21 January 2025, I have dismissed the appeal by the three appellants against the sentence imposed by the learned Sessions Court Judge [the learned SCJ] after the Appellants pleaded guilty to an offence of committing mischief by fire with intent to destroy a house, an offence under s 436 of the Penal Code [Act 574] read together with s 34 of the same Act.
[2] The Appellants, Then Shaw Nam had filed a Notice of Appeal to the Court of Appeal through the Officer in Charge, Penjara Puncak Borneo, Kuching, Sarawak against my decision dated 27 January 2025 whereas Nelson Anak Ajau had only filed his Notice of Appeal dated 3 February 2025.
[3] In this Grounds of Decision, I will refer to the Appellants as the 1st, 2nd and/or 3rd Accused respectively.
Brief Background
[4] The charge against all the 1st, 2nd and 3rd Accused in the Sessions Court is as follow:
The charge
"That you together, on the 7 July 2023, at about 02.05 am, at house Number No 42 Taman Hill View, in the district of Kota Samarahan, in the State of Sarawak, in furtherance of common intention, committed mischief by fire intending to cause destruction of a building ordinarily used for human dwelling owned by Liu Siew Mui (NRIC No. 741203-13-5254), hence you hereby committed an offence under s 436 of the Penal Code read together with s 34 of the same Code.
Punishment:
Shall be punished with imprisonment for a term which may extend to twenty years and shall also be liable to fine."
[5] For ease of reference, the provision of s 436 of the Penal Code is reproduced below:
"Mischief by fire or explosive substance with intent to destroy a house, etc.
436. Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship, or for the administration of justice, or for the transaction of public affairs, or for education, or art, or for public use or ornament, or as a human dwelling, or as a place for the custody of property or any government facility, shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to fine."
[6] Under s 436 of the Penal Code , whoever commits mischief by fire or any explosive substance, intending to cause, the destruction of any building which is ordinarily used as a human dwelling, shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to fine.
[7] The brief facts tendered in the Sessions Court and marked as exhibit P1 can be summarised as follows:
(a) On 7 July 2023, the complainant received a WhatsApp message from an unknown individual claiming responsibility for burning down the complainant's house and demanding payment from the complainant's son, Voon Jun Kheong, for an outstanding debt.
(b) The complainant's estimated loss is approximately RM80,000.00.
(c) The 1st and 2nd Accused were arrested on 16 July 2023, followed by the arrest of the 3rd Accused on 17 July 2023.
(d) Investigations revealed that on 7 July 2023, at around 1:30 AM, the Accused visited a Petronas gas station in the 3rd Accused's mother's car, purchasing RM40.00 worth of petrol. The 1st Accused filled a gallon barrel brought by the 2nd Accused.
(e) All the Accused then went to the house at No 2, Taman Hill View, Kota Samarahan, intending to set it on fire. The 3rd Accused poured petrol on the house, the 1st Accused ignited the fire using a lighter from the 3rd Accused, and the 2nd Accused filmed the incident. All the Accused then left the scene.
(f) The 3rd Accused sent the video to another suspect, still at large, requesting payment after the house was set on fire. On the same day, RM1,350.00 was transferred to the 3rd Accused's mother's account. The 3rd Accused withdrew the money using his mother's ATM card and shared it among the Accused. One (1) bank statement from CIMB Bank Berhad for account ow
